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[2015] ZACT 62
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Lemmer v Companies and Intellectual Property Commission (CT007Feb2015) [2015] ZACT 62 (1 July 2015)
IN
THE COMPANIES TRIBUNAL OF SOUTH
AFRICA
(PRETORIA)
Case
No.: CT 007FEB2015
In
the matter between:
JOHANNES
CASPARUS
LEMME
Applicant
and
COMPANIES
AND
INTELLECTUAL
PROPERTY
COMMISSION
Respondent
DECISION
INTRODUCTION
[1]
This is an application requesting a default order against the
Respondent in terms of section 11(2), section 12 and section 160
of
the Companies Act 71 of 2008 (the "Companies Act") read
with Regulation 153 of the Companies Act (GNR 351 of 265 April
2011)
(the "Companies Regulations").
[2]
The Applicant requests that the Respondent be ordered to reserve and
register Council for Sexual Health Professionals (CSHP)
as the
Applicants company name.
PARTIES
[3]
The Applicant is Johannes Casparus Lemmer, a member of Sexology SA's
Professional Council for Sexual Health Practitioners, with
registration No. 2005/121355/23 and having its place of principal
business situated at Suite 60, Private Bag x1 Menlo Park, 0102.
[4]
The Respondent is the Companies and Intellectual Property Commission,
a member of the Department of Trade and Industry group.
PROCEDURE
[5]
Before an application for a default order can be brought by an
Applicant, the Applicant must comply with Regulation
142 and
Regulation 143 of the Companies Regulations.
[6]
In accordance with Regulation 142 of the Companies Regulations, the
Applicant is obliged to serve a copy of the application
and the
affidavit on the Respondent within 5 business days after filing it
with the Tribunal.
[7]
In addition, the Applicant must bring an application for a default
order in terms of Regulation 153(1) of the Companies Regulations.
In
terms of Regulation 153(1), if the Respondent has not filed a
response within the prescribed period, the Applicant may apply
to
have the order, as applied for, issued against the Respondent by the
Tribunal.
[8]
Finally, Regulation 153(2)(b) of the Companies Regulations also
states that the Tribunal may make an appropriate order, if it
is
satisfied that the notice or application was adequately served.
EVALUATION
[9]
The Applicant has provided the Tribunal with CTR 142 and CTR 145
together with affidavits and an email sent to the Respondent
and
Tribunal dated 2 February 2015.
[10]
From the documents provided by the Applicant, there are a number of
problems, the most pertinent are the following:
[10.1]
The affidavits submitted in support of the main application, the
application to request the Tribunal to order the Respondent
to
reserve and register the proposed company name and the default
application does not provide any information or basis for which
an
order in favour of the Applicant can be granted; and
[10.2]
The main application and application for default has not been
properly served on the Respondent as required in terms of the
above
regulations.
[10]
In the circumstances, I am not satisfied that there has been
compliance with the Companies Regulations by the Applicant.
ORDER
I
proceed to make an order in the following terms:
a)
The Applicant is directed to provide more information and to set out
reasons why he is entitled to the relief claim and further
to ensure
that he complies with the above regulations in respect of proper
service on the Respondent.
ADV
LIZELLE HASKINS
MEMBER
OF THE COMPANIES TRIBUNAL
DATED:
1 July 2015